R v Can

[2019] ACTSC 368

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Can

Citation:

[2019] ACTSC 368

Hearing Date:

16 April 2019

DecisionDate:

24 May 2019

Before:

Burns J

Decision:

See [17]–[18]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – cultivating a commercial quantity of a controlled plant, namely cannabis – consideration of moral culpability – good prospects for rehabilitation

Legislation Cited:

Criminal Code 2002 (ACT), s 616(3)

Parties:

The Queen (Crown)

Xuan Cuang Can (Offender)

Representation:

Counsel

S McFarland (Crown)

M Kukulies-Smith (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Offender)

File Number(s):

SCC 282 of 2018

BURNS J

1. Mr Xuan Cuang Can, on 4 October 2018, you pleaded guilty in the

   
   

   ACT Magistrates Court to one charge of cultivating a commercial quantity of a controlled plant, namely cannabis, with the intention of selling the plants or their products (CC2018/7752). This is an offence contrary to s 616 (3) of the Criminal Code 2002 (ACT). The maximum penalty for that offence is 25 years’ imprisonment, a fine of $375,000 or both.

1. On 9 November 2018, you were committed to this Court for sentence. On

   
   

   13 June 2018, police executed a search warrant at a premises which you owned in Spence in the ACT. You were present at the time. Police gained entry to the premises and identified that it was a cannabis grow-house. Police observed that a level underneath the house was full of mature cannabis plants. Various other rooms throughout the premises also contained cannabis plants at various stages of maturity. Through your Counsel, you have agreed that there were 259 cannabis plants in total. A commercial quantity of cannabis plants is 100.

1. Police observed sophisticated lighting, irrigation, climate control and exhaust systems set up to aid the cultivation and harvesting of the cannabis. There was fertiliser stacked against walls within the premises. There were cannabis offcuts bundled in green coloured garbage bags. You were arrested at the scene and taken to

   
   

   the ACT Watch-House. You declined the opportunity to participate in a record of interview.  

1. At your sentence hearing, the Crown played a video recording of a walkthrough of the Spence premises, demonstrating the degree of sophistication involved in the cultivation. I am satisfied that this was a very sophisticated operation involving a large number of plants, which is indicative of large anticipated profits.  

1. At the sentence hearing, your Counsel tendered a letter from you in which you alleged that you became involved in the cultivation because you were addicted to gambling and you had borrowed money which you were unable to repay.  

1. You said that the people from whom you borrowed forced you to grow the cannabis to repay them and they provided you with the materials to undertake the cultivation, as well as providing you with instructions. I place little weight on the assertion that you were forced to undertake the cultivation. It is an allegation which cannot be tested and was not subject to sworn testimony by you.

1. It has been stated, on many occasions, that these Courts will give little weight to

   
   

   self-serving statements such as this, which are not the subject of sworn testimony by the offender.  It may well be that you were in debt due to gambling and anticipated clearing that debt from the profits of this cultivation, but I do not accept the assertion that you were forced to undertake the cultivation. This was clearly a premeditated offence. It is clear that you were hoping to make a significant profit from your involvement.  

1. It was submitted by your Counsel, that you were effectively only a gardener with respect to the offence. I make it clear that I do not accept that submission. Over the period from 12 April 2018 until 12 June 2018, when you were under surveillance, you attended the property at Spence on 95 separate occasions. These premises were your own premises. There is no convincing evidence that any other person was involved in the cultivation. You were the principal in this offence. Your moral culpability for this offence is high. 

Subjective Features

1. You are 43 years old and you have no previous convictions. A Pre-Sentence Report states that since being remanded in custody, you have engaged in education and employment, and you have not been the subject of disciplinary action within the prison.  

1. You were born in Vietnam as one of four children and arrived in Australia in 1997 to study English in Sydney. You maintain contact with your parents, who are currently retired and living in Vietnam. One of your sisters also lives in Vietnam, while your other two siblings live in Germany. You described a stable upbringing and supportive family.  

1. You were married for six years, before being divorced in 2005. You are currently in a relationship and your partner has visited you in custody. You have no children. You completed the equivalent of Year 12 in Vietnam. Despite having been in Australia for over 20 years, you have difficulties with the English language. You have held numerous casual employment positions in the past. You stated that you have a debt of approximately $100,000 as a result of gambling.  

1. You told the author of the Report that you could have sold your house in Spence to pay the gambling debt, but you chose to engage in the present offence instead. 

1. Your alcohol use was assessed as placing you at high risk. However, there is no suggestion that the present offence was associated with alcohol use. You expressed an interest in undertaking a rehabilitation program, with regard to your alcohol use and your gambling. You claimed you only tried cannabis once in the past, and denied any other illicit substance abuse.

1. You have no physical or mental health issues. You expressed regret to the author of the Pre-Sentence Report for your involvement in this offence. You also expressed regret in the letter to which I have referred. You have been assessed as a low risk of general reoffending.  

1. I take into account the character references that were tendered at the sentence hearing. They speak of this offence as being out of character and of you having demonstrated remorse for your conduct. I accept that you are genuinely sorry for having committed this offence. I also accept that it is unlikely that you will reoffend.  

1. In my opinion, you have good prospects for rehabilitation. Nevertheless, I am satisfied that this is an offence which calls for a term of imprisonment. As the maximum penalty demonstrates, it is an offence which is considered serious by the community. Your motive for engaging in this offence was greed. Your plea of guilty was an early plea and had a significant value in that the community was not put to the expense of a trial. I am also satisfied that your plea of guilty demonstrates remorse on your part.  

Sentence

1. I will reduce by approximately 25 percent, the otherwise appropriate sentence, because of your plea of guilty. I record a conviction with respect to the offence. My starting point is three years' imprisonment. I will reduce this by nine months, to

   
   

   two years and three months' imprisonment because of your plea of guilty.  

1. That sentence will commence on 13 June 2018 and expire on

   
   

   12 September 2020. In light of your age, your lack of previous criminal history and your prospects for rehabilitation, I set a non-parole period of 15 months, commencing

   
   

   13 June 2018 and expiring 12 September 2019.  

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: